In Re Commitment of Flemming – 2/21/2007

February 27, 2007

Arizona Court of Appeals Division Two Affirms Decision to Stay, Not Dismiss, Civil Commitment of Pedophile Sentenced to Prison Term for Attack on Staff Member While Under Civil Commitment.

Fleming, an admitted pedophile, was adjudicated a sexually violent person and was civilly committed for treatment pursuant to A.R.S. § 36-3707(B)(1) of the state Sexually Violent Persons Act (SVPA). While under civil commitment, Flemming attacked a staff member, was convicted of aggravated assault, and was sentenced to serve 3.5 years in prison. The trial court granted the state’s request to stay treatment, evaluation, testing, and reporting requirements under the SVPA pending Flemming’s release from prison and return to civil commitment. The court denied a “motion to dismiss” brought by Flemming, who argued that the state’s discontinuance of the services and review procedures provided by statute for civilly committed sex offenders warranted a dismissal of the SVPA proceedings. Flemming appealed.

The Arizona Court of Appeals affirmed. The Court held that the SVPA proceedings remained pending because the criminal conviction and incarceration did not constitute a “discharge” for purposes of terminating the court’s jurisdiction under § 36-3704(D). While not expressly authorized by statute, a stay of the SVPA proceedings and commitment was a necessary and permissible consequence of Flemming’s incarceration. Because the civil commitment was stayed while he served his prison term, Flemming had no “right” to receive the “care, supervision and treatment” or the procedural protections afforded by statute to those who are civilly committed.

Chief Judge Pelander wrote the opinon; Presiding Judge Espinosa and Retired Judge Druke concurred.